When your child is under the age of majority, you — as the parent or legal guardian of your child — get to make various decisions on their behalf and plan for your child’s future. However, this changes when your child becomes an adult.
The age at which a child passes into adulthood varies from province to province but in B.C. the age is 19 years. Once an adult, it’s imperative that you consider having your child engage in estate planning and personal planning in order to execute three key planning documents:
- A Will.
- A Power of Attorney; and
- A (Health Care) Representation Agreement.
Last Will and Testament
While your child might not have much in the way of assets at age 19, this may change in the future. If you establish a Registered Disability Savings Plan (RDSP) for your child, any funds remaining in that plan on the death of your child will be part of your child’s estate and will be governed by your child’s will. If your child does not have a will, any funds in the RDSP will be governed by intestacy laws.
Power of Attorney and (Health Representative Agreement)
During your child’s life, there may be instances where your child is unable (due to illness or disability) or unwilling to make his or her financial, legal or health related decisions.
Your child, once 19, is able to legally appoint you or another trusted individual as his or her “agent” so that the agent can deal with these types of decisions on behalf of the child.
There are two ways of doing this:
- a Power of Attorney – where your child appoints a person or series of people to assist with financial and legal decision making if your child is unwilling or unable to make these decisions him or herself; and
- a Representation Agreement – where your child appoints a person or series of people to assist with medical and personal care decision making if your child is unwilling or unable to make these decisions him or herself
Your child should seek legal advice to in preparing these three documents.
If you have a concern about the legal mental capacity of your child, your lawyer can assist you to determine what planning documents are available to your child and options for planning based on his or her capacity status.
It is important to remember that a Power of Attorney and a Representation Agreement do not displace the child’s ability to make his or her own decisions and deal with his or her own assets. They merely appoint an alternate decision maker when the child is not capable or does not want to make this type of decision.
A child also holds the power to terminate the appointee(s) under his or her Power of Attorney and Representation Agreement, provided the child maintains the requisite capacity to do so.
Other things to remember:
- Once planning documents are complete, share the Representation Agreement with the child’s medical treaters and the Power of Attorney document with the child’s financial institutions.
- Be sure that if the child’s financial institution wants your child to sign that institution’s own form of Power of Attorney, make sure that you first seek legal review of the document to ensure that it does not revoke the document that your adult child has already signed.
Finally, as a parent of a child with a disability, it’s critically important that you (and if you have a spouse, your spouse) prepares a thorough estate plan in order to plan for your child’s future and protect him or her once you are gone.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.